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STATE OF OREGON,
Respondent on Review,
v.
MARIO ARREOLA-BOTELLO,
Petitioner on Review.
(CC C151713CR) (CA A161566) (SC S066119)
En Banc
On review from the Court of Appeals.*
Argued and submitted March 4, 2019, at the Lewis &
Clark School of Law, Portland, Oregon.
Joshua B. Crowther, Deputy Public Defender, Office of
Public Defense Services, Salem, argued the cause and filed
the briefs for petitioner on review. Also on the briefs was
Ernest G. Lannet, Chief Defender.
David B. Thompson, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
Rosalind M. Lee, Eugene, filed the brief for amici curiae
Oregon Criminal Defense Lawyers Association and Oregon
Justice Resource Center.
NELSON, J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings con-
sistent with this opinion.
Garrett, J., dissented and filed an opinion, in which
Balmer, J., joined.
______________
* On appeal from Washington County Circuit Court, D. Charles Bailey, Jr.,
Judge. 292 Or App 214, 418 P3d 785 (2018).
696 State v. Arreola-Botello
Case Summary: An officer stopped defendant for changing lanes and turn-
ing without a signal, and, during the stop, asked defendant questions about con-
traband and for consent to search the vehicle. Defendant consented, the officer
discovered drugs, and defendant was charged with possession of a controlled sub-
stance. Defendant moved to suppress the evidence, but the trial court declined to
do so, concluding that the officer’s inquiries had been permissible because they
occurred during an “unavoidable lull.” The Court of Appeals affirmed. Held: (1)
Article I, section 9, of the Oregon Constitution requires that all investigative
inquires during a traffic stop be reasonably related to the purpose of the stop or
have independent constitutional justification; (2) the officer’s inquiries were not
reasonably related to the purpose of the stop; and (3) defendant was therefore
unlawfully seized, and the trial court erred in not suppressing the evidence dis-
covered during that unlawful seizure.
The decision of the Court of Appeals is reversed. The judgment of the circuit
court is reversed, and the case is remanded to the circuit court for further pro-
ceedings consistent with this opinion.
Cite as 365 Or 695 (2019) 697
NELSON, J.
In this criminal case, we consider the constitution-
ally permissible scope of a traffic stop under Article I, sec-
tion 9, of the Oregon Constitution. Defendant was lawfully
stopped for failing to signal a turn and a lane change. During
the stop, while defendant was searching for his registration
and proof of insurance, the officer asked him about the pres-
ence of guns and drugs in the vehicle, and requested consent
to search the vehicle. Defendant consented, and during the
search, the officer located a controlled substance. Defendant
contends that the officer expanded the permissible scope
of the traffic stop when he asked about the contents of the
vehicle and requested permission to search it because those
inquiries were not related to the purpose of the stop. For the
reasons that follow, we agree with defendant that the trial
court erred in denying defendant’s motion to suppress, and
we reverse the decision of the Court of Appeals.
In reviewing the denial of a motion to suppress evi-
dence, we are bound by the trial court’s factual findings to
the extent that those findings are supported by evidence in
the record. State v. Stevens, 311 Or 119, 126, 806 P2d 92
(1991). Additionally, “if the trial court does not make find-
ings on all pertinent historical facts and there is evidence
from which those facts could be decided more than one way,
we will presume that the trial court found facts in a manner
consistent with its ultimate conclusion.” Id. at 127. We state
the following facts in accordance with that standard.
Officer Faulkner of the Beaverton Police Department
observed defendant’s vehicle change lanes and turn with-
out signaling. Faulkner initiated his patrol car’s overhead
lights, and defendant pulled over. Faulkner approached
defendant’s vehicle and requested his driver’s license, reg-
istration, and proof of insurance. Defendant was able to
immediately produce his license but spent about three to
four additional minutes searching for his registration and
proof of insurance.
While defendant was searching, Faulkner asked
him questions. Defendant, who primarily speaks Spanish,
was having difficulty understanding the questions in
English. At the beginning of the traffic stop, a passenger
698 State v. Arreola-Botello
1
The record from the suppression hearing is unclear about whether that
line of questioning occurred before or after the translating passenger left the
scene, but, during the later bench trial, Faulkner testified that the passenger had
already left before defendant had authorized consent to search. No issue is raised
on review concerning defendant’s understanding of Faulkner’s request.
2
As explained below, the Court of Appeals has held that, during an “unavoid-
able lull,” an officer may ask unrelated questions during a traffic stop if those
questions do not extend the duration of the stop. See State v. Nims, 248 Or App
708, 713, 274 P3d 235 (2012) (so stating); see also State v. Gomes, 236 Or App
364, 372, 236 P3d 841 (2010) (concluding that an officer’s unrelated inquiries did
not violate constitutional protections because they occurred simultaneously with
activities related to the traffic stop and did not extend its duration). This court
has not previously addressed that line of reasoning.
Cite as 365 Or 695 (2019) 699
Id. at 622-23.
This court has explained, in various circumstances,
the limits that Article I, section 9, places on investigatory
activities during a traffic stop. For example, in Rodgers/
Kirkeby, we considered what constitutional limitations, if
any, applied to an officer’s ability to ask questions unrelated
to the purpose of the traffic stop at the end of that stop,
rather than issuing a citation or releasing the individual
being questioned. In that case, the state argued that this
court had already rejected the notion that an officer may
never ask questions unrelated to the stop itself. Id. at 618.
The state proposed that, as a rule, police questioning that is
unrelated to a traffic stop, or a request for consent to search
during a lawful traffic stop, does not constitute an unconsti-
tutional seizure if that questioning creates only a de mini-
mis delay during an otherwise lawful stop. Id. We disagreed,
and we held that “police authority to detain that motorist
dissipates when the investigation reasonably related to that
traffic infraction, the identification of persons, and the issu-
ance of a citation (if any) is completed or reasonably should
have been completed.” Id. at 623.
In reaching that conclusion, this court agreed with
the state that an officer’s verbal inquiries are not searches
or seizures in and of themselves. Id. at 622. We determined,
however, that the show of authority that is inherent in a
traffic stop, combined with an officer’s verbal inquiries,
resulted in a restriction of a personal freedom that, absent
reasonable suspicion, violated Article I, section 9. Id. at
627-28. Although we limited our analysis to the facts pres-
ent in that case, we noted that “[p]olice conduct during a
noncriminal traffic stop does not further implicate Article I,
section 9, so long as the detention is limited and the police
conduct is reasonably related to the investigation of the non-
criminal traffic violation.” Id. at 624 (emphases added).
In Watson, this court considered the authority of an
officer to perform unrelated investigatory activities during
a traffic stop. 353 Or at 769. In that case, the defendant
Cite as 365 Or 695 (2019) 703
Id. at 781.
704 State v. Arreola-Botello
3
Here, Faulkner did not perform a warrants check. Therefore, the question
whether a warrants check is, or can be, reasonably related to the purpose of a
traffic stop, is not before us.
708 State v. Arreola-Botello
5
Whether the statutory requirement that an officer have probable cause to
believe that a person has committed a traffic offense to justify a traffic stop is
also a requirement under Article I, section 9, is a question that this court has
reserved. State v. Matthews, 320 Or 398, 402 n 2, 884 P2d 1224 (1994).
710 State v. Arreola-Botello
court, and did not argue in the Court of Appeals, that defen-
dant’s consent was only tenuously related to Faulkner’s ille-
gal inquiries. Accordingly, the trial court erred in denying
defendant’s motion to supress the evidence.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings con-
sistent with this opinion.
GARRETT, J., dissenting.
This court has held that, in ordinary police-citizen
encounters (that is, encounters that are not seizures), police
may engage citizens in “mere conversation” and generally
ask questions of them without implicating Article I, section
9. State v. Warner, 284 Or 147, 161, 585 P2d 681 (1978); see
also State v. Holmes, 311 Or 400, 407, 813 P2d 28 (1991) (com-
paring ordinary “noncoercive” encounters with stops and
arrests, which are both seizures requiring constitutional
justification). We have also held that, because a traffic stop
is a seizure, police may continue the traffic stop for only so
long as the basis for that seizure exists; thus, police may not
extend the stop with questioning, “mere conversation,” or
other activities unrelated to the original basis for the stop,
unless they have an independent and constitutionally suffi-
cient basis to continue the detention for such activities. See
State v. Rodgers/Kirkeby, 347 Or 610, 623-24, 227 P3d 695
(2010) (so stating).
The question left unanswered until today is what
subject matter restrictions, if any, apply to police activity
that is not related to the original basis for the traffic stop
but that also does not cause any prolongation of the stop.
The Court of Appeals has addressed the issue and con-
cluded that, so long as unrelated activity occurs during
an “unavoidable lull” in the traffic stop, then such activity
effects no greater restriction on liberty than was already
in place. See State v. Gomes, 236 Or App 364, 370-71, 236
P3d 841 (2010). Therefore, it is of no constitutional import.
See id. (“there are no Article I, section 9, implications if an
inquiry unrelated to the traffic stop occurs during a routine
stop but does not delay it”).
716 State v. Arreola-Botello
1
The majority focuses on Watson’s observation that the warrants check was
irrelevant because it did not produce incriminating evidence “or” extend the stop.
I understand the majority to infer from the disjunctive phrasing that the Watson
court meant that, if the warrants check had led to incriminating evidence, then
the court would have proceeded to determine whether the warrants check was
reasonably related to the purpose of the stop, regardless of whether or not the
warrants check caused any additional extension of the stop. From that infer-
ence, the majority appears to then conclude that Watson supports the idea that
all police “activity” must be “reasonably related” to the purpose of the stop. But
the inference is debatable; the court in Watson never explained what would have
happened on a different set of facts, and it certainly never explained that it was
adopting the rule that the majority attributes to it. In fact, Watson largely syn-
thesized and applied existing cases and did not purport to announce any new
rule.
Cite as 365 Or 695 (2019) 719
2
The key language in Watson on which the majority relies is this: “Thus,
both Oregon statutes and this court’s Article I, section 9, case law, require that
law enforcement officers have a justification for temporarily seizing or stopping a
person to conduct an investigation, and that the officer’s activities be reasonably
related to that investigation and reasonably necessary to effectuate it.” 353 Or
at 781. That language does appear to support the majority’s decision, but only
because the majority mistakenly views that as the “holding” of Watson. See 365
Or App 704. It was not; the quoted language immediately followed the court’s
description of Rodgers/Kirkeby and other cases and was clearly meant to syn-
thesize the rule established by those cases. See Watson, 353 Or at 778-81. And,
because those cases involved arguments that stops had been extended, Watson’s
summary of the rule necessarily incorporated that factual limitation.
720 State v. Arreola-Botello